Khursida Bano And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

The appellants, namely, Khursida Bano and Md. Sultan Khan have challenged the judgment of conviction under section 302/34 IPC dated 18.6.2008 and the order of sentence of R.I. for life dated 23.6.2008 passed by the learned Additional Sessions Judge-II, Dhanbad in Sessions Trial No. 180 of 2006.

The appellant-Khursida Bano is the elder sister-in-law of the victim - Asgari Bano and the appellant-Md. Sultan Khan is the husband of the victim lady.

A First Information Report vide Jharia P.S. Case No. 421 of 2005 was registered on the basis of fardbeyan of Asgari Bano recorded at 15:15 hrs. on 31st October, 2005 at Female-ward, PMCH, Dhanbad, against Md. Sultan Khan, Khursida Bano and Farha Khatoon under section 307/326/34 IPC. During her treatment, Asgari Bano died in the hospital on 6th November, 2005 and, accordingly, offence u/s 302 IPC was added in the FIR. After the investigation, charge sheet against the appellants, namely, Sultan Khan and Khursida Bano was submitted under section 302/34 IPC and the appellants have faced the trial in Sessions Trial No. 180 of 2006 on the aforesaid charge. During trial the prosecution has examined 5 witnesses. Dr. Ranjit Kumar Arya -P.W. 4 has conducted autopsy and the Investigating Officer has examined himself as P.W. 5. Brother of the victim lady, namely, Md. Akhtar @ Guddu is P.W. 3 and her mother, namely, Zaibun Nisha has been examined as P.W. 2.

The doctor has found burn injuries to the extent of 75-80% over the body of Asgari Bano. In his opinion, the death is caused due to Septicemia Bacteremia after burning.

On the basis of the evidences laid before him, the learned Additional Sessions Judge-II, Dhanbad has held that the prosecution has proved charge under section 302/34 IPC against both the appellants and, accordingly, convicted them for the aforesaid offence.

At the outset, it is important to record that the prosecution witness Mokin @ Gorka, who has been examined as P.W. 1 and who claims that on information he has visited the house of the accused persons, does not say in his examination-in-chief that he has found the accused Md. Sultan present there. He only talks of the accused Khursida Bano. There is no eye witness to the occurrence and the prosecution's case revolves around the fardbeyan of Asgari Bano recorded on 31.10.2005. The mother and brother of the deceased have spoken about the ill-treatment of Asgari Bano by her husband and illicit relationship of her husband with Khursida Bano, his elder sister-in-law.

On the allegation of illicit relationship between the appellants, the defence taken by the accused persons is that the appellant Md. Sultan Khan was staying separately from his other brothers. The accused persons have also taken the defence that Asgari Bano has died an accidental death by catching fire from a stove in the kitchen. The accused persons have examined one Parikhan Das, Sub-Inspector of Police who had recorded the fardbeyan of Farha Khatoon on 29.10.2005.

It is a matter of record, admitted by the Sub-Inspector of Police, Dhanad and not disputed by the prosecution that statement of Farha Khatoon was recorded previously by the police on 29.10.2005 in which she has spoken about Asgari Bano catching fire from a stove. In her fardbeyan recorded on 31.10.2005, Asgari Bano says that her statement was recorded prior to this statement, however, due to fear of her husband and Khursida Bano she did not speak the correct facts. At this stage, it is important to record that the injured- Asgari Bano was taken to PMCH, Dhanbad by the neighbours and it has not come in the prosecution's evidence that at that time the accused persons were accompanying her and under their pressure she did not speak truth and while so, the subsequent statement of Asgari Bano recorded on 31.10.2005 becomes suspicious. It is suspicious for another reason; the fardbeyan of Farha Khatoon. Moreover, previous statement of the victim has not been brought on record, and her further statement between 31.10.2005 to 5.11.2005 was not recorded.

The Investigating Officer who has been examined as P.W. 5 has admitted that on 29.10.2005 Station Diary Entry regarding death of Asgari Bano by catching fire was made. This has been marked as Ext.-A, at the instance of the defence. The fardbeyan of Farha Khatoon has been proved and it bears LTI of Md. Sultan and Zafar Aansari, this fardbeyan has also been produced by the defence and marked as Ext.-B. The investigating officer admits that on 31st October, 2005 statement of the injured Asgari Bano was not recorded by him. He has also admitted that he did not find any burn sign in the victim's room and he did not inspect the kitchen. He has further admitted that none of the witnesses has stated before him that the accused Md. Sultan has put his wife on fire.

It is also important to mention here that fardbeyan of Asgari Bano recorded on 31.10.2005 is not attested by the doctor and her mother who says that Asgari Bano had informed her that the accused persons have set her on fire.

The injured-Asgari Bano was not in a fit state to make her statement is the defence of the accused-appellants, who have examined Parikhan Das as D.W. 1 on this point. D.W.1 has stated that he did not record statement of Asgari Bano because she was not in a condition to speak.

We find that the learned Additional Sessions Judge has not at all dealt with the defence taken by the appellants and the evidences laid by them. We further find that the learned Judge has erroneously held that fardbeyan of Asgari Bano recorded on 31.10.2005 is not hit u/s 162 Cr.P.C. It is not that statement of Farha Khatoon recorded on 29.10.2005 was a cryptic information, rather it is descriptive and, therefore, the police was under a duty to register FIR on the basis of fardbeyan of Farha Khatoon which was recorded on 29.10.2005.

In the above facts, having examined the record of S.T. No. 180 of 2006, we hold that the prosecution has miserably failed to prove the charge under section 302/34 IPC against both the appellants and, accordingly, the judgment of conviction under section 302/34 IPC dated 18.6.2008 and the order of sentence of R.I. for life dated 23.6.2008 passed by the learned Additional Sessions Judge-II Dhanbad in Sessions Trial Case No.180 of 2006 are set-aside.

Both the appellants namely, Khursida Bano and Md. Sultan Khan are acquitted of the charge under section 302/34 IPC framed against them. Both the accused persons shall be set free forthwith, if not wanted in connection with any other case.

In the result, Criminal Appeal (DB) No. 989 of 2008 is allowed.

Let the lower court records be transmitted to the court concerned, forthwith.